D.C. Mandal, Member (T)

1. In this ROM application, the applicants have prayed for rectification of certain mistakes in the Tribunal's Order No. 740/88-C dated 16-9-1988. In paragraph-1 of the ROM application the applicants have stated that during the hearing of the appeal on 13-9-1988, Shri N.C. Chakraborty, authorised representative argued for the appellants whereas due to some communication gap, it appears, the name of Shri K.M. Lakhotia has been indicated instead of Shri N.C. Chakraborty. This point has also been reiterated by Shri N.C. Chakraborty while arguing on the ROM application before us. In the relevant column "present for the appellant" of the order sheet dated 13-9-1988 which was placed before the Bench hearing the appeal, the name of "Shri K.M. Lakhotia, consultant" was shown by the Court Master. In the circumstances, the name of Shri K.M. Lakhotia appeared in the Tribunal's Order instead of the name of Shri N.C. Chakraborty. This is a mistake apparent on record and is required to be rectified by substituting the name of Shri N.C. Chakraborty in place of Shri K.M. Lakhotia, wherever the latter occurs in the impugned order.

2. In paragraph 2 (a) of the ROM application the applicants have stated that during the hearing on 13-9-1988 clarifications were placed and attention was drawn to a number of orders which, according to the applicants, sustained that Catalytic Preparations and activated Earth were raw materials entitled to the benefit of notification No. 201/79-C.E. because the use of the same in the production of Vanaspati was technological necessity. In paragraph 2(j) of the ROM application the applicants have stated that in the Drawback Rules, which are equally valid for Central Excise purposes, admitted Catalyst to be a raw material and it was urged in the E.A.-3 Form filed by the appellants, but this contention appears to have escaped attention of the Tribunal. During the hearing of the ROM application, Shri Chakraborty has stated that he relied on the following case laws at the time of hearing of the appeal :-

(i) 1985 ECR 1152 (Cegat)

(ii) 1985 ECR 1536 (Cegat)

(iii) 1985 ECR 862 (Cegat)

(iv) MANU/CM/0024/1983 : 1983 (13) E.L.T. 1263 (Cegat)

(v) MANU/GJ/0090/1980 : 1980 (6) E.L.T. 538 (Gujarat)

He has also stated that he urged the point relating to Drawback Rules while arguing the appeal. On a thorough check of the records, we observe that he (consultant) referred to these case laws in a unsigned typed note which was submitted during the hearing of the appeal, but he did not address oral arguments on these case laws. In the said typed note, vide item 6 thereof, it was mentioned that Rule 3(2)(d) of the Drawback Rules, 1971 treated Catalyst as raw material. This being the position, we are inclined to add a paragraph in the impugned order.

3. In paragraph 2(k) of the ROM application the applicants have stated that the Collector of Central Excise (Appeals), Calcutta passed the order-in-appeal without application of mind and this contention will find support from the fact that he placed Nickel Catalyst in the category of capital goods and this fact was also stressed in E.A.-3 Form without any effect. During the oral arguments before the Bench on 13-9-1988 this point was not discussed by Shri Chakraborty. As this point was not argued during the hearing of the appeal, the Tribunal did not discuss the same in its order since in the absence of any specific argument it was to be presumed that this point was not stressed on behalf of the appellants during the stage of hearing. Even otherwise, this point would not make any difference in the view taken by the Tribunal in the impugned order. Therefore, there is no question of any mistake on the part of the Tribunal warranting any rectification on this point.

4. In paragraphs 2(b), (c), (d), (e), (0, (g), (h) and (i) of the ROM application, the applicants have submitted that on 12-10-1988 they brought to the notice of the Tribunal's Bench a case law reported in MANU/CE/017